Characterizing Agency Determinations After Loper Bright
In Loper Bright Enterprises v. Raimondo, the Supreme Court overruled Chevron deference to reasonable agency interpretations of ambiguous statutes they administer. Chevron’s much-anticipated demise has inspired analysis and consternation in both administrative law scholarship and the broader public. This Article argues against the consensus view that Chevron played a significant role in how courts review agency actions. In doing so, it surfaces what it calls the characterization step: the choice of standard of review for an agency determination. To date, courts have given little attention to whether a challenged agency action is subject to review as a legal determination under Chevron or as a policy determination under State Farm, since both standards were deferential. This Chevron-State Farm distinction was most often framed as a distinction between legal determinations and policy determinations. But since the Supreme Court has effectively jettisoned deference to legal determinations, agencies may now recharacterize their actions as policy determinations to shop for a more deferential standard of review.
Part I explains how Chevron and State Farm parallelled each other as standards of review in both theory and practice, and how Loper Bright disrupted that balance. Part II brings together the sparse Supreme Court precedents to develop the characterization step and critiques the scholarship’s attempts to distinguish Chevron and State Farm questions. Part III supplies the first empirical study of lower court characterization decisions, cataloging 129 decisions over seven years. Remarkably, courts largely applied both standards to the same determination, applied State Farm at Chevron Step Two, or even declined to decide which standard governs. When courts distinguished the two standards, they did so inconsistently. These pre-Loper Bright findings suggest that courts will continue to enjoy flexibility when deciding whether to apply State Farm or de novo review under Loper Bright. Part IV offers three predictions for how agencies, lower courts, and the Supreme Court will deploy new arguments and strategies after Loper Bright, contesting deference at the characterization step. While Chevron is gone, the agency determinations that were subject to Chevron—and thus the characterization step—are here to stay.
Cite as Leo Rassieur, Characterizing Agency Determinations After Loper Bright, 18 N.Y.U. J.L. & Liberty 273 (2025).